“Except As Otherwise Specified in this Agreement”

As reported on ContractsProf Blog, the phrase except as otherwise specified in this agreement featured in newscaster Dan Rather's contract with CBS. It also featured in a New York appellate court's opinion in CBS's appeal of the trial court's refusal to dismiss Rather's breach of contract claim against CBS. At issue was the interplay of two contract provisions. Here's the pertinent part of the … [Read more...]

The Passive Voice Has Its Uses

MSCD 2.18 notes that the passive voice can be of use in contracts. Consider the following example: If any Person brings a proceeding to compel the Recipient to disclose any Confidential Information ... In this context, the active voice is wordy. It's obvious that a proceeding would have to be brought by someone. Because it doesn't matter who brings a proceeding, we don't care about the … [Read more...]

“And” and “Or” and Covering a Disparate Group

One of my afflictions is paranoia regarding and and or. (You may recall my deconstruction of a Toronto restroom notice.) Consider the following: If a proceeding seeks to compel the Recipient or any of its Representatives to disclose any Confidential Information ... I'm wondering whether one could improve on that formulation—given that or can be inclusive or exclusive, it's not clear whether … [Read more...]

On Declining to Post Comments

To my recollection, until a couple of weeks ago I had outright rejected only a single comment, and that was on grounds of undue snarkiness. I had avoided posting perhaps a couple of dozen other comments, but in those cases I attempted to smooth things over by treating the comment as an email and sending the commenter a friendly reply. By contrast, over the past couple of weeks I've declined to … [Read more...]

“Representations and Warranties”—Glenn West Wades In

Following on this September 18 post and this September 20 post, the saga continues: Glenn West, partner at Weil Gotshal and author of the two most useful articles on substantive contract law that I've come across in a long time, agrees with me on represents and warrants and representations and warranties. Below is the email Glenn sent me in connection with the September 18 post; below that is my … [Read more...]

If You’re New to This Site

If you've been lured to this site by my ABA Journal "Legal Rebels" profile and would like to learn more about what I do, you might want to check out the following: the page of this site dealing with my book A Manual of Style for Contract Drafting information about my public seminars with West LegalEdcenter (in the U.S.) and with Osgoode Professional Development (in Canada) information … [Read more...]

“Representations and Warranties”—A Handy 558-Word Analysis

It's clear from reader feedback that I need to do a better job of explaining myself. Here goes: It's pointless and confusing to use in contracts the phrases represents and warrants and representations and warranties because ... Because my informal inquiries indicate that most lawyers treat the elements of those phrases as synonyms, much as they do the two elements of indemnify and hold … [Read more...]

Some Kinds of Backdating May Be Permissible, But that Doesn’t Make It a Good Idea

On the website of the state bar of Wisconsin I came across an article entitled "Backdating Documents: Not Necessarily the Stuff of Scandal." It contains the following passage: Drafting and executing a document after an event occurs, but in a manner that accurately reflects the date on which the event transpired, is a permissible form of backdating. This is backdating that memorializes, something … [Read more...]

Revisiting “To the Best of Its Knowledge” (Plus Thoughts on the Marketplace of Ideas)

While reading Lorne & Bryan's discussion of representations and warranties I encountered the following statement: Similarly, there should never be any objection to "representations" being made to the best of the knowledge of a party (as opposed to "to the knowledge" of a party, a phrase that is at best ambiguous and at worst contrary to what appears to be its generally accepted … [Read more...]

Who Gets to Draft Contracts?

In this post on his licensinghandbook.com blog, Jeffrey Gordon suggests that lawyers should consider the value that contract specialists can bring to the contract process. That got me to wondering whether any such contract specialist would have to be a lawyer. In other words, if a nonlawyer works on a contract, does that constitute the authorized practice of law? I'm not about to start … [Read more...]

“Representations and Warranties”—Once More, With Feeling

[Updated Sept. 20 12:30 p.m. EDT: I realized that I needed to provide a more succinct version of my analysis. If that's what you're looking for, check out this blog item, which I just posted.] I’ve previously explained why the phrases representations and warranties and represents and warrants are pointless and confusing. And that applies whatever the governing law. My most detailed take on the … [Read more...]

New Article on Extra-Contractual Liability

The August 2009 issue of The Business Lawyer contains a great article by Glenn D. West and W. Benton Lewis, Jr. of Weil Gotshal entitled "Contracting to Avoid Extra-Contractual Liability—Can Your Contractual Deal Ever Really Be the 'Entire' Deal?." Click here for a copy. Glenn is getting into the habit of writing articles that are essential reading for anyone looking to establish a solid … [Read more...]

So I’m a Legal Rebel

As part of their ambitious Legal Rebels project, the ABA Journal has named me one of their fifty "Legal Rebels." They've been rolling out profiles of their Legal Rebels, and they've now posted mine; click here to go to it. Rebellion isn't something that usually comes to mind when I think of the American Bar Association, but I commend Ed Adams and his team for their effort to set a different … [Read more...]

The Limits of “Relating To”

For all my dwelling on relating to, I haven't considered at what point something might be too remote to a given circumstance to be related to it. That, of course, is a fact-driven issue that isn't susceptible to generalization. But it can be useful to consider examples, and Vickie Pynchon provides one in this post on her Settle It Now Negotiation Blog. It discusses the Fifth Circuit Court of … [Read more...]

The Breast Cancer Research Foundation Taking Part in the Penn Law 2009 Redrafting Project

In this April 2009 post I solicited submissions from any company interested in taking part in this semester's Penn Law redrafting project. But then I had a change of heart—why not invite a not-for-profit organization to take part? So we're going to be redrafting a trademark license agreement that The Breast Cancer Research Foundation enters into with its corporate alliance partners. I'm … [Read more...]

Lawyer and Contract Manager: Compare and Contrast

I was recently reminded of this article on the role of contract managers, as well as this follow-up article prompted by the recession. Both were written by Tim Cummins of the International Association for Contract and Commercial Management (IACCM). These articles caught my eye because my public seminars and my in-house seminars at companies are attended by both lawyers and contract managers. … [Read more...]

“In Other Words”

The other day I encountered in other words in a contract. An Edgar search indicates that it occurs often enough to be worth mentioning. In effect, in other words allows the drafter to take a second crack at articulating something. As a general matter, say something once, why say it again? … [Read more...]

“Is Advisable and in the Best Interests Of”

[Revised 2:00 p.m. Sept. 11 to reflect comment by randomjohn] It's commonplace for resolutions in board consents to state that something is advisable and in the best interests of the company. My first instinct was to say that is advisable and is redundant. But responding to my call for input, reader randomjohn pointed out that in a number of provisions, the Delaware General Corporation Law … [Read more...]

Superfluous Recitals in Merger Agreements

Methinks that the recitals in the average big-time-M&A merger agreement are bloated. By way of example, below are the recitals from the August 31, 2009, merger agreement for Disney's acquisition of Marvel. I've noted some big-picture comments in bracketed italics; I'll spare you my many micro-level objections. RECITALS WHEREAS, the parties intend that, subject to the terms and conditions … [Read more...]

“Confidentiality” or “Nondisclosure”?

Here's a gripping issue: What should one call a contract requiring that certain information be kept confidential—confidentiality agreement or nondisclosure agreement? What nondisclosure agreement has going for it is the convenient and universally recognized initialism NDA. By contrast, I've rarely seen CA used for confidentiality agreement. Nevertheless, I prefer confidentiality agreement, … [Read more...]